Difference between revisions of "Motor Vehicle Offences for Drugs and Alcohol (13:IX)"

=== 6. Twelve and 24-Hour Suspensions and 90-Day Driving Prohibitions ===

Even if the driver’s blood alcohol concentration does not exceed .08, the driver may be prohibited from driving for 24 hours if the peace officer has reasonable and probable grounds to believe that the driver’s ability to drive a motor vehicle is affected by alcohol. The police may also impound the motor vehicle for 24 hours under s 215.4(1) of the MVA if they believe that impoundment is necessary to prevent the driver from driving or operating the motor vehicle before the prohibition expires. If an ASD shows that the driver’s blood alcohol concentration is not over .05, the police must end the prohibition. The appeal to the Superintendent follows the same procedure as what is outlined under “Challenging Roadside Conditions” (IX.A.1.c).  

Under MVA s 90.3, a peace officer may issue a 12-hour license suspension for an individual who has care or control of a motor vehicle with any  amount of alcohol in his or her body, provided that there has been a previous condition imposed under MVA s 25(10.1) which prohibits that driver from driving after consuming alcohol (i.e. driving with a Class 7 or 7L). However, this suspension is terminated if the individual provides a medical certificate stating that his or her blood alcohol level did not exceed .03 at the time (30 milligrams of alcohol in 100 millilitres of blood).  

Under s 215(2)(c) of the MVA, a peace officer who has reasonable and probable grounds to believe that a driver’s ability to drive the motor vehicle has been affected by alcohol may order the driver to surrender his or her license. The license is then suspended, even if it is not physically surrendered, for 24 hours or until the driver proves that he or she has a count of less than .05 (50 milligrams of alcohol in 100 millilitres of blood). Such proof may be obtained by means of a test or a doctor’s certificate. It is important to note that this test is completely voluntary, but it is mandatory when a peace officer requests a test.  

Under MVA s 215(3)(c), a police officer who has reasonable and probable grounds to believe that a driver’s ability to drive the motor vehicle  has been affected by a drug other than alcohol may order the surrender of the driver’s license. The license will be suspended for 24 hours or until the driver proves he or she is not affected by drugs.  

If the result of any voluntary test taken is adverse to the driver, it cannot be used as evidence against the driver. It will only be used to confirm or challenge the officer’s decision to suspend the license. While a suspension under MVA s 215 will be placed on the driver’s record, this is a preferable alternative to a charge and conviction under the ''Criminal Code''.

Under MVA s 94.1, if a peace officer has reasonable and probable grounds to believe that a person operated or had care and control of a motor vehicle while the concentration of alcohol in the blood exceeded .08 (80 milligrams of alcohol in 100 millilitres of blood) or that a person refused to provide a breath or blood sample (as required under ''Criminal Code'' s 254), the peace officer will likely issue a 90-day driving  prohibition. The driver has seven days to apply to the Superintendent for review (MVA s 94.4(1)).  

== B. Federal (Criminal) Offences ==

=== 1. Impaired Driving/Exceeding 80 Milligrams (.08) ===

When breathalyzer test results are over .08, the driver may be charged with exceeding .08 or impaired driving. In addition, the driver will receive a 90-day Administrative Driving Prohibition (ADP). To apply for a review of the ADP the driver must do so within seven days from the date he or she receives the Notice of Driving Prohibition.

*The concentration of alcohol in my blood did not exceed 80 miligrams of alcohol in 100 milliliters of blood.

*I did not refuse or fail to comply with a demand under section 254 of the ''Criminal Code'' to supply a breath or blood sample.

*I had a reasonable excuse for failing or refusing to comply with a demand under section 254 of the ''Criminal Code'' to supply a breath or blood sample.  

Section 253(1)(a) of the ''Criminal Code'' makes it an offence either to operate or to be in care or control of a motor vehicle while alcohol  or drugs impair one’s ability to drive. Section 253(1)(b) makes it an offence to either operate or be in the care or control of a motor vehicle with a blood-alcohol concentration reading in excess of 80 milligrams of alcohol per 100 millilitres of blood. With a charge under s 253, the Crown must prove driving if driving is charged or prove care or control if care or control is charged. These are two separate and distinct offences and neither is included in the other: ''R v Henryi'', (1971), 5 CCC (2d) 201 (BC Co Ct); ''R v Jones'' (1974), 17 CCC (2d) 221 (BCSC); and ''R v Faer'' (1975), 26 CCC (2d) 327 (Sask CA). Since it is difficult to conceive of a situation when driving is not also care or control, the Crown will almost always charge care or control.

*a) Pursuant to ''Criminal Code'' s 258(1)(a), where a person is occupying the seat or position ordinarily occupied by the person who operates  the motor vehicle, that person will be presumed to be in care or control unless he or she establishes that he or she did not occupy that seat or position for the purpose of setting the vehicle in motion; or

*b) If the Crown is unable to rely on this presumption (i.e. the accused establishes that he or she did not enter the vehicle with the intent  to set it in motion), the Crown must then prove acts of care or control which have been defined as any use of the vehicle or its fittings and equipment or some course of conduct associated with the vehicle which create the danger or risk of putting the vehicle in motion: ''R v Toews'' (1985), 21 CCC (3d) 24 (SCC).  

A peace officer may demand a breath or blood sample pursuant to ''Criminal Code'' s 254(3) if the peace officer has reasonable and probable grounds to believe the individual is impaired or has a blood alcohol level over .08. Reasonable and probable grounds may include factors such as the physical condition of the person, if the person is incapable of providing a sample of his or her breath, or that it would be impracticable to obtain a breath sample (s 254(3)). Refusal to provide a sample is a criminal offence (s 254(5)).

For a charge under s 253(1)(b), the Crown may prove a blood alcohol reading in excess of .08 by producing a valid certificate of analysis or providing ''vive voce'' testimony at trial from a registered analyst or breathalyzer technician about the blood alcohol concentration at the time the accused provided a breath sample.  

Once a certificate has been prepared or the Crown has tendered ''vive voce'' evidence of the blood  alcohol concentration, the Crown can rely on the presumption commonly known as the “presumption back” set out in ''Criminal Code'' s 258(1)(c). Under this section, where samples of  breath are taken within two hours from the time the offence is alleged to have been committed, the concentration of alcohol in the blood reflected by those samples will be assumed to have been the concentration of alcohol in the blood at the time of the offence unless the accused raises evidence to the contrary (i.e. that he or she consumed more alcohol between being stopped and the time the sample was taken). Please  note that the “presumption back” applies only to samples demanded pursuant to s 254(3) and not s 254(2), which is for screening purposes (see [[{{PAGENAME}}#2. Refusing to Provide a Breath or Blood Sample | Section IX.2: Refusing to Provide a Breath or Blood Sample]]). The “presumption back” also applies to a blood sample (s 258(1)(d)).  

Note that this presumption pertaining to the evidence contained in the breathalyzer certificate does not offend s 11(d) of the Charter which protects the presumption of innocence: ''R v Bateman'', [1987] BCJ No 253; 46 MVR 155 (BC Co Ct).

As stated above, a conviction requires the production of a valid certificate or ''vive voce'' testimony at trial from a registered analyst or  a breathalyzer technician. However, the breathalyzer technician or registered analyst must have the requisite qualifications.

==== a) Penalties ====

Under Criminal Code s 255, impaired driving is a hybrid offence. The minimum fine for a first offence is $1,000. If convicted of an indictable  offence under s 255, the accused may be liable for a maximum of 5 years’ imprisonment. If convicted on summary conviction, the accused may be liable for up to 18 months’ imprisonment.

Imprisonment is mandatory for repeat offences: at least 30 days for the second offence and at least 120 days for each additional offence.  

Under s 259(1), a person’s driver’s license may be suspended for a period between one and three years. If convicted a second time, the suspension will be between two and five years. On each subsequent offence, the suspension would be a minimum of three years. Section 259(1.1)  gives the court discretion to authorise an offender to drive during the prohibition period if the offender registers in an alcohol ignition interlock device program. Such an authorisation will not come into effect until the expiry of an absolute prohibition period of at least three  months for a first offence, six months for a second offence, and one year for every subsequent offence (s 259(1.2)).  

In addition, 10 penalty  points are recorded pursuant to the MVAR and the offence may be a breach of certain conditions under s 55(8) of the ''Insurance (Vehicle) Regulation''.  

=== 2. Refusing to Provide a Breath or Blood Sample ===

A peace officer can demand a breath sample if that officer reasonably suspects a driver has consumed alcohol (''Criminal Code'' s 254(2)). This is for screening purposes only. An officer may also demand a breath or blood sample for later use as evidence in court under s 254(3) if that officer has reasonable and probable grounds to believe that the driver is impaired or has a blood alcohol concentration level over .08. Refusal to provide a sample in either circumstance is a criminal offence (s 254(5)). To demand the sample under s 254(3), the test is both subjective  and objective. The peace officer must hold an honest belief and there must be reasonable grounds for this belief (based on ''Criminal Code'' s 254(3) and ''Charter'' s 8 (protection against unreasonable search and seizure) as interpreted in ''R v Bernshaw'' (1994), 95 CCC (3d) 193 (SCC)).

 

In some cases, a reasonable excuse has been held to include the right to first consult with a lawyer in private. Where an accused chooses to exercise the right to retain counsel, the police officer must provide him or her with a reasonable opportunity to retain and instruct counsel: ''R v Elgie'' (1987), 48 MVR 103 (BCCA); ''R v Manninen'', [1987] 1 SCR 1233. If the police officer does not inform the driver of his or her right to retain and instruct counsel (''Charter'' s 10(b)), the breath or blood sample, if given, may be excluded from evidence if admitting it “would bring the administration of justice into disrepute” (''Charter'' s 24(2)).